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14 F.

3d 787

Ricardo BURGOS, Plaintiff-Appellant,

Marian HOPKINS, Warden; Daniel Meehan, Deputy Warden;
James Grillo, Captain; Warlick, Correction
Officer (Shield No. 7328); NFN Hurdle,
Correction Officer (Shield No.
___), Defendants-Appellees.
No. 44, Docket 93-2006.

United States Court of Appeals,

Second Circuit.
Submitted Oct. 8, 1993.
Decided Jan. 26, 1994.

Ricardo Burgos, pro se.

A. Orli Spanier, New York City (O. Peter Sherwood, Corp. Counsel of the
City of New York, New York City, of counsel), for defendants-appellees.
Before: PIERCE, MINER and ALTIMARI, Circuit Judges.
ALTIMARI, Circuit Judge:

Plaintiff-appellant Ricardo Burgos appeals pro se from a judgment of the

United States District Court for the Eastern District of New York (Nickerson,
J.), dismissing on res judicata grounds his civil rights action brought pursuant
to 42 U.S.C. Sec. 1983 (1988). The district court determined that Burgos's Sec.
1983 claims had already been fully litigated in a state court habeas corpus
proceeding, which had been decided against him. The district court had
previously denied Burgos's motion for appointment of pro bono counsel.

Burgos now essentially argues that the district court erred in denying him
counsel, preventing him from showing that his Sec. 1983 claims are not barred
by res judicata. We agree, because our review of relevant state statutes and case
law shows that the relief now sought by Burgos was not available in the prior

state court proceeding. For that reason, we hold that Burgos's instant claim is
not barred by res judicata, and remand for further consideration, including a
determination of whether collateral estoppel applies.

On August 7, 1991, Burgos brought the present action pro se under 42 U.S.C.
Sec. 1983 against various employees of the House of Detention for Men on
Rikers Island ("the appellees"). Burgos's complaint alleged that he sustained
injury in a May 1989 attack at Rikers Island by a fellow inmate named Jose
Medina due to the appellees' failure to assign him to protective housing
pursuant to his security classification. He also alleged that two correction
officer appellees improperly permitted Medina to have access to his cell block.

Burgos had previously brought both a state habeas corpus proceeding and a
prior federal Sec. 1983 action based on the May 1989 incident at Riker's Island.
The prior state habeas corpus proceeding was commenced in July 1989 in the
New York State Supreme Court, Bronx County. The petition was brought
against the former Commissioner of the New York City Department of
Correction and the Warden of the Bronx House of Detention, the institution in
which Burgos was incarcerated. Burgos alleged through counsel that he was
subjected to cruel and unusual punishment primarily as a result of a May 1989
attack by another inmate instigated by correction officers. The inmate was later
identified as Jose Medina. After a hearing in which Burgos called three inmates
and five correction officers as witnesses, the state judge dismissed all the
allegations based on the May 1989 attack. The rest of the petition was
subsequently dismissed on February 2, 1990.

The prior federal action was brought pursuant to 42 U.S.C. Sec. 1983 and
commenced in July 1989--at the same time as the state action--in the United
States District Court for the Southern District of New York (Mukasey, J.).
Burgos cited the May 1989 attack as a violation of his civil rights, and
requested as part of his relief a transfer to the federal prison system. The action
was brought against the same individuals as in the state habeas proceeding, and
also against correction officials in both the state and federal prison systems. On
January 3, 1990, the district court stayed the action until the state habeas
proceeding was resolved. It does not appear that Burgos requested reactivation
of the Southern District action after the state action was decided against him.
Instead, he brought the instant, virtually identical, Sec. 1983 action in the
Eastern District.

As noted, the instant action raised the same claims as those raised in both the

prior state proceeding, which was resolved against him, and the prior federal
action, which was never resolved. Burgos applied for appointment of pro bono
counsel to represent him in the instant Sec. 1983 suit, but the motion was
denied by the district court on July 14, 1992. The court stated that it would
consider the motion as the case progressed, but did not address the issue again
during the course of the proceedings, even after a renewed motion by Burgos.

The appellees moved for summary judgment in August 1992, arguing that
Burgos's Sec. 1983 claim was barred by the doctrine of res judicata. The
argument was based on Burgos's prior actions, the appellees contending that
Burgos had already raised the same claims and had them resolved against him
in state court. The district court agreed, dismissing the action on summary
judgment on December 8, 1992. The court, reviewing the history of Burgos's
prior state court habeas proceeding, found that Burgos had already been
afforded a full opportunity to litigate his claims in the prior cases. The district
court also found that Burgos had incorrectly declared when filing the instant
suit that he had not begun any other lawsuits dealing with the same facts

Burgos now appeals pro se, arguing that the district court erred by refusing to
appoint pro bono counsel. Burgos contends that without counsel he was unable
to demonstrate that his claims were not barred by res judicata. Resolution of
this argument depends on whether Burgos's position that res judicata does not
apply has possible merit. For the reasons stated below, we find that Burgos's
claims are not barred by res judicata, and remand the case to the district court
for further consideration.


We review the district court's grant of summary judgment de novo. TransOrient Marine Corp. v. Star Trading and Marine, Inc., 925 F.2d 566, 572 (2d
Cir.1991). We must "resolve all ambiguities and draw all reasonable inferences
in favor" of the non-moving party, and require "the moving party to
demonstrate the absence of any material factual issue genuinely in dispute."
Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975).


The central issue in this appeal is whether Burgos's argument that his claim is
not precluded by res judicata had sufficient merit to deserve appointment of
counsel. There is no requirement that an indigent litigant be appointed pro bono
counsel in civil matters, unlike most criminal cases. See 28 U.S.C. Sec. 1915(d)
(1988) (providing that the court "may request an attorney to represent any such
person unable to employ counsel") (emphasis added). Rather, the district court

has the discretion to appoint counsel, according to factors set forth by this Court
in Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir.1986) (listing various
factors including the likely merit of the indigent litigant's position, the
indigent's ability to investigate facts, the importance of cross-examination, the
indigent's ability to present his case, and the complexity of the case). In Hodge,
we held that the threshold requirement in considering a request for appointment
of counsel was the likelihood of success on the merits of the claim. See 802
F.2d at 60-61; see, e.g., Cooper v. A. Sargenti Co., 877 F.2d 170, 172-73 (2d
Cir.1989) (emphasizing necessity for claim to have merit for appointment of

The district court relied on this threshold requirement in denying Burgos's

motion for appointment of counsel, principally on the ground that his claims
were barred by res judicata because of the earlier state habeas proceeding. In
order to decide whether Burgos should have been afforded counsel, therefore,
we must determine whether res judicata does bar Burgos's claim in the instant
Sec. 1983 action.


Traditionally, the doctrine of res judicata, or claim preclusion, provides that "a
final judgment on the merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised in that action."
Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980)
(applied in the context of Sec. 1983 actions). Res judicata must be distinguished
from the very similar but distinct doctrine of collateral estoppel, which is also
known as issue, rather than claim, preclusion. As defined in Allen, "[u]nder
collateral estoppel, once a court has decided an issue of fact or law necessary to
its judgment, that decision may preclude relitigation of the issue in a suit on a
different cause of action involving a party to the first case." Id. Different rules
and restrictions apply to each doctrine, and although some courts fail to
distinguish between the two, see id. at 94 n. 5, 101 S.Ct. at 414 n. 5, it is
important in this case to be cognizant of their distinctiveness. The district court
did not make clear in its opinion whether it was dismissing the case on res
judicata or collateral estoppel grounds. Although the court used language
suggestive of collateral estoppel, both parties have characterized the decision as
one involving res judicata. Because for the reasons below we find that res
judicata does not bar Burgos's claims, but that his claims may be barred under
collateral estoppel, we remand to the district court for further consideration.

I. Res Judicata/Claim Preclusion


Under the Constitution's Full Faith and Credit Clause, see U.S. Const. Art. IV,
Sec. 1, federal courts must accord state court judgments the same preclusive

effect as other courts within that state. See Migra v. Warren City School
District, 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); see also 28
U.S.C. Sec. 1738 (1988). Our analysis is governed by New York State law,
which has adopted a transactional approach to res judicata, barring a later claim
arising out of the same factual grouping as an earlier litigated claim even if the
later claim is based on different legal theories or seeks dissimilar or additional
relief. See, e.g., Smith v. Russell Sage College, 54 N.Y.2d 185, 445 N.Y.S.2d
68, 71, 429 N.E.2d 746 (1981).

This bar will not apply, however, where "the initial forum did not have the
power to award the full measure of relief sought in the later litigation."
Davidson v. Capuano, 792 F.2d 275, 278 (2d Cir.1986); McLearn v. Cowen &
Co., 48 N.Y.2d 696, 422 N.Y.S.2d 60, 61, 397 N.E.2d 750 (1979). As stated by
the Restatement:

15 general rule [against relitigation of a claim] is largely predicated on the

assumption that the jurisdiction in which the first judgment was rendered was one
which put no formal barriers in the way of a litigant's presenting to a court in one
action the entire claim including any theories of recovery or demands for relief that
might have been available to him under applicable law. When such formal barriers in
fact existed and were operative against a plaintiff in the first action, it is unfair to
preclude him from a second action in which he can present those phases of the claim
which he was disabled from presenting in the first.

Restatement (Second) of Judgments Sec. 26(1)(c) cmt. c (1982). Thus, where a

plaintiff was precluded from recovering damages in the initial action by formal
jurisdictional or statutory barriers, not by plaintiff's choice, a subsequent action
for damages will not normally be barred by res judicata even where it arises
from the same factual circumstances as the initial action.


The district court found that the disposition of Burgos's prior state habeas
proceeding barred the subsequent federal action. Because Burgos is a pro se
litigant, we read his supporting papers liberally, and will interpret them to raise
the strongest arguments that they suggest. See Mikinberg v. Baltic S.S. Co.,
988 F.2d 327, 330 (2d Cir.1993). Having reviewed his briefs in that light, we
question whether a New York court would give the prior habeas proceeding the
preclusive effect afforded it by the district court.


We have not found case law in New York considering whether compensatory
and punitive damages, such as those sought by Burgos in his instant action, are
recoverable in a state habeas petition. A review of New York's habeas corpus
statute and other state authorities, however, shows that such damages are

indeed not recoverable. The state statute codifying habeas corpus provides that
"[a] person illegally imprisoned or otherwise restrained in his liberty ... may
petition without notice for a writ of habeas corpus to inquire into the cause of
such detention and for deliverance." N.Y.Civ.Prac.L. & R. 7002(a) (McKinney
1980) (emphasis added). The statute states that the individual can petition for
"deliverance," but makes no mention of the possibility of damages. Similarly,
Sec. 7002(c) lists the various requirements necessary in a petition--including
the name of those detaining the petitioner, the cause or pretense of the
detention, the nature of the alleged illegal detention, and the facts authorizing
the judge to act on the petition--but does not provide for the insertion of a
damages claim. Id. Sec. 7002(c). Finally, Sec. 7010, which provides for the
"determination" of the proceeding, states only that "[i]f the person is illegally
detained a final judgment shall be directed discharging him forthwith," ignoring
completely the possibility of damages. Id. Sec. 7010(a); see id. Sec. 7010(b)-(c)
(providing also for reduction of bail, or the remand to proper detention).

Accordingly, it is clear from a reading of the statute that the sole purpose of
New York habeas corpus is to inquire into the cause of imprisonment or
restraint, and to determine whether the detention is void. See 64 N.Y.Jur.2d
Habeas Corpus Sec. 2 (1987). This conclusion is supported by case law,
because New York courts have not allowed in a habeas proceeding the granting
of forms of relief other than discharge, bail, or remand. See, e.g., Graham v.
State, 25 A.D.2d 693, 267 N.Y.S.2d 1009, 1009 (1966) (stating that habeas is
not available to secure return of property); People ex rel. Tatra v. McNeill, 19
A.D.2d 845, 244 N.Y.S.2d 463, 464 (1963) (disallowing release of petitioner's
funds for independent psychiatrist in habeas petition); Ex parte Derer, 262 A.D.
969, 30 N.Y.S.2d 53, 53 (1941) (holding that court in habeas petition has no
authority to condition visitation right of parent upon payment for support and


A review of the statute and case law, therefore, shows that a New York State
court determining a petition for habeas relief does not have the authority to
award damages to the petitioner. The nature of a habeas petition--which is
directed to those detaining or restraining the individual, not necessarily to those
who committed the alleged wrong leading to the wrongful detention--simply
does not lend itself to the imposition of damages. See N.Y.Civ.Prac.L. & R.
7004(b) (stating that respondents in habeas corpus proceeding are those having
custody of person detained). For example, Burgos brought the habeas petition
against the Commissioner of Corrections and the Warden of the Bronx House
of Detention, his custodians at the time, while the instant action was brought
against the wardens and officers at the Rikers Island facility at which the attack
on Burgos allegedly occurred. It would be nonsensical to argue that Burgos

would have been able to recover damages from individuals who committed no
alleged tortious wrong.

Because it is clear that a petitioner in a New York State habeas proceeding is

not entitled to damages, this case is controlled by the analysis in Davidson,
which involved the preclusive effect under New York law of a prior Article 78
proceeding for a subsequent Sec. 1983 claim. In Davidson, we initially found
that the plaintiff's ultimately successful claims in the Article 78 proceeding
were indistinguishable from his Sec. 1983 action. See 792 F.2d at 278. We
went on to find, however, that the plaintiff would not have been entitled to the
damages available in the Sec. 1983 action in his previous Article 78
proceeding. See id. at 279. Specifically, we reviewed New York State authority
and found that, although damages can be recovered where they are incidental to
the primary relief sought, "damages for civil rights violations are not included
in this category." Id. at 278. We therefore concluded that a New York State
court would not find an action for damages for a violation of civil rights barred
by res judicata because of a prior action under Article 78. See id. at 282; see
also Antonsen v. Ward, 943 F.2d 198, 203-04 (2d Cir.1991) (applying analysis
as in Davidson, finding that plaintiff could not have pursued damages for pain
and suffering in prior state court action); Fay v. South Colonie Central School
District, 802 F.2d 21, 29-30 (2d Cir.1986) (following Davidson, holding that
prior Article 78 proceeding does not bar subsequent federal Sec. 1983 action);
Koncelik v. East Hampton, 781 F.Supp. 152, 156 (E.D.N.Y.1991) (following
Davidson, finding that res judicata does not apply where initial litigation was
Article 78 proceeding); cf. Pasterczyk v. Fair, 819 F.2d 12, 15 (1st Cir.1987)
(finding that prior state proceeding barred Sec. 1983 action under res judicata
because prior state proceeding was not habeas corpus, but for declaratory


We do not see why the analysis in Davidson does not apply squarely in this
case. Habeas petitions are very similar in nature and character to Article 78
proceedings. Like an Article 78 proceeding, a habeas petition does not
specifically allow for the recovery of damages. Moreover, this Court in
Davidson specifically noted the importance of the nature of an Article 78
proceeding as a "special proceeding" under New York law. See 792 F.2d at 280
(noting that special proceeding is designed to facilitate quick and easy summary
disposition). Similarly, a habeas petition is designated as a "special proceeding"
under New York law. See N.Y.Civ.Prac.L. & R. 7001; 64 N.Y.Jur.2d Habeas
Corpus Sec. 1 ("Habeas corpus proceedings are not actions, but are special civil
proceedings used to test the jurisdiction of the restraining person or authority.").


The appellees argue that Burgos was free to bring his damages claims in the

state court system, and that his failure to take advantage of this opportunity bars
his present claim. The fact that Burgos could have brought a damages action
against the state, however, is beside the point. Res judicata will only apply if
the particular prior habeas proceeding was one in which damages were
available to him. Moreover, the exception to res judicata described in Davidson
and the Restatement does not depend on whether Burgos failed to ask for
damages from the state court hearing his habeas petition, because the inquiry
centers not on what he did or did not do but on whether the court had the power
to grant him the relief sought in the present action. See Williams v. Ward, 556
F.2d 1143, 1154 (2d Cir.) (stating that "mere fact that the remedy sought in one
action is different from that sought in another does not alone suffice to
differentiate the underlying claims," in situation where court deciding initial
proceeding had power to award relief sought in later proceeding), cert.
dismissed, 434 U.S. 944, 98 S.Ct. 469, 54 L.Ed.2d 323 (1977). Neither does it
matter that the plaintiff in Davidson had prevailed in his Article 78 proceeding,
while Burgos was unsuccessful in his habeas petition; the exception in
Davidson is not based on the relative success of the plaintiff in the initial
proceeding, but on the nature of the initial proceeding itself. See Davis v.
Halpern, 813 F.2d 37, 39 n. 2 (2d Cir.1987).

We therefore conclude that the state court deciding Burgos's petition for habeas
corpus was not empowered to award him damages, and, consequently, a New
York court would not find the instant Sec. 1983 action barred by res judicata.

II. Collateral Estoppel/Issue Preclusion


Under New York law, the doctrine of collateral estoppel "precludes a party
from relitigating in a subsequent action or proceeding an issue clearly raised in
a prior action or proceeding and decided against that party or those in privity,
whether or not the tribunals or causes of action are the same." Ryan v. New
York Telephone Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487
(1984). There are two requirements for the application of collateral estoppel to
an issue: (1) "[t]here must be an identity of issue which has necessarily been
decided in the prior action and is decisive of the present action," and (2) "there
must have been a full and fair opportunity to contest the decision now said to be
controlling." Schwartz v. Public Administrator, 24 N.Y.2d 65, 298 N.Y.S.2d
955, 960, 246 N.E.2d 725 (1969).


As noted above, the district court made no explicit determination as to

collateral estoppel or to either of these above requirements, and the appellees do
not specifically contend under collateral estoppel doctrine that Burgos's issues
are precluded by the prior habeas proceeding. Although Burgos's claims are not

precluded by res judicata, his issues may be precluded by collateral estoppel.

That he was unable to receive damages in his state habeas petition may relieve
him of res judicata application, but it does not necessarily change the fact that a
court has already decided the issues he now raises. See generally Davis, 813
F.2d at 39-40 (under New York law, applying Davidson and finding that there
was neither claim preclusion nor issue preclusion); Cepeda v. Coughlin, 785
F.Supp. 385, 388 (S.D.N.Y.1992) (under New York law, noting that parties
agree that res judicata does not apply to Sec. 1983 action with identical claims
to prior Article 78 proceeding, but that defendants assert that collateral estoppel
still applies). Determination of whether collateral estoppel applies does not
depend on whether the relief now sought was available in the state habeas
petition; what matters is whether there was a full opportunity to litigate
identical issues. Although Burgos's claim is not precluded, it may be that under
collateral estoppel many or all of the issues he now raises will have to be
determined by reference to the previous state court judgment. See Gramatan
Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 414 N.Y.S.2d 308, 311, 386
N.E.2d 1328 (1979) (collateral estoppel permits determination of issue raised in
subsequent action by reference to previous action).

Because the district court failed to distinguish between collateral estoppel and
res judicata, it is difficult to determine the precise grounds for the court's
dismissal of the case. It is possible that the court mixed the two concepts
together in arriving at its decision. As shown above, however, res judicata
claim preclusion does not apply to Burgos's Sec. 1983 action, so any decision
incorporating res judicata as a basis for dismissal would be flawed. It is at this
point unclear whether collateral estoppel applies, since there is some evidence
in the record that, for example, not all of the claims brought in the Sec. 1983
action were brought in the state habeas proceeding. Because the court did not
explicitly delineate the ground for its dismissal, and because we find res
judicata inapplicable, we find that the district court did not pass specifically on
collateral estoppel.


In any event, the record is not developed enough on these points for us to make
a determination of whether Burgos's claims are collaterally estopped under
New York law. We therefore remand the case to the district court for its
determination. On remand, the district court must determine whether all of
Burgos's issues in the instant suit were brought in the habeas petition, or
whether other differences in the nature of the suit mandate that he be given a
chance to prove his case. See Gutierrez v. Coughlin, 841 F.2d 484, 486 (2d
Cir.1988) (per curiam) (under New York law, holding that prior adjudication of
Article 78 proceeding in federal Sec. 1983 plaintiff's favor did not preclude
relitigation of issue of due process violation where nature of defenses and

liability would be different in Sec. 1983 proceeding).


For the above reasons, we find that Burgos's claims are not barred on res
judicata grounds, because Burgos was not entitled in his prior state proceeding
to the relief he now seeks. Consequently, we find that the district court erred in
concluding that there was no likelihood of success to Burgos's claims, and in
dismissing the action on a motion for summary judgment.


We therefore reverse the grant of summary judgment and remand the case to
the district court so that the court can reconsider the motion for appointment of
counsel consistent with this opinion. In reconsidering the motion, the district
court can further explore the likelihood of success of Burgos's claims,
especially considering the possibility of collateral estoppel, and weigh the other
factors discussed in Hodge.